Fuente: The Wall Street Journal

July 16, 2010

By MIKE GORDON

LUXEMBOURG—A Dutch city was within its rights to bar so-called coffee shops from selling marijuana and hashish to foreigners in an effort to clamp down on drug tourism, an adviser to the European Union’s top court said Thursday.

The nonbinding legal opinion from the European Court of Justice’s advocate general, Yves Bot, said the city of Maastricht could prohibit drug sales to foreigners even while sales to Dutch citizens were tolerated.

The advocate general said drugs “are not goods like others and their sale does not benefit from the freedoms of movement guaranteed by European Union law” because they are illegal outside the Netherlands, the court said.

Many thousands of young tourists flock to the Netherlands each year to sample marijuana and hashish that are openly sold in cafés and bars known as coffee shops across the country.

The country hasn’t formally legalized drugs, but, under government guidelines, possession of small amounts of certain “soft” drugs isn’t prosecuted.

Cities are also allowed to license shops to sell a maximum of five grams per customer per day. They can’t sell to customers under the age of 18 or permit drugs other than marijuana or hashish on their premises.

Maastricht’s “measure is necessary to maintain public order in the face of troubles caused by drug tourism and contributes to combating the illicit trade in narcotics,” the court said.

The court was providing its opinion on an effort by the mayor of Maastricht, a midsize university town sitting in a finger of Dutch territory almost surrounded by Belgium and Germany, to clamp down on drug tourism. As many as 70% of the two million customers who visit Maastricht’s coffee shops every year have to cross the border.

In 2005, Gerd Leers, Maastricht’s then-mayor, prohibited coffee shops in his city from selling drugs to people who aren’t from the Netherlands. The ban, at the request of the Dutch Minister of Justice, was meant to create a test case over whether Dutch cities could limit access to Dutch nationals.

Police started strictly enforcing the rules. Shops found in violation are closed for a minimum of three months for a single offense, six months for a second violation, and permanently for a third offense. The restrictions led to the closure of 11 of Maastricht’s 26 licensed shops.

Subsequent developments have led to a plan to fingerprint customers and electronically record their identity cards. The rules are supposed to help stores show they aren’t selling to underage customers and that they don’t sell more than five grams per customer per day.

Marc Josemans, owner of a coffee shop called “The Easy Going” and chairman of the Society for Official Coffeeshops in Maastricht, was one of those who broke the rules.

He says he sells about €10 million ($12.7 million) in drugs per year and risks losing about 30% of that if the ban on sales to non-Dutch stands. He was forced to close for three months after the city found that, in 2006, he had sold drugs to Europeans not from the Netherlands on two occasions.

Mr. Josemans took the mayor to the Dutch court called “the Council of State.”

He explained in an interview with Australian television that he wasn’t concerned only about his own economic rights, but also his clients’ rights and health.

“If they are not allowed to go to the safe haven to buy their cannabis, separated from the hard drugs,” he said, “they are obliged to go in their own country in the illegal circuit where everything is in the same room on the same table, and that is a dangerous situation.”

The Dutch court decided that some of the issues in the case might contravene the European treaty rights of free movement of goods and services across borders, or even discriminate against people from other EU nations. It therefore referred questions on how the Maastricht law should be interpreted to the European Court of Justice.

Mr. Josemans’s lawyer, Andre Beckers, has argued that cannabis should be treated like any other product and that the nationality of the customer shouldn’t matter in what is essentially an economic matter.

On Mr. Josemans’s side is the European Commission, the EU’s executive arm. Hubert Van Vliet of the commission’s legal service argued that excluding the coffee shops from the EU single market would undermine fundamental European treaty rights.

He said simpler, less-sweeping measures could deal with any public-order problems. He proposed an ID system, compulsory use on the premises and lower amounts of pot for each buyer.

Defending the law, the Maastricht city council and the Dutch state questioned how goods that are formally illegal can be discussed in terms of free trade. They also argued that the law existed to protect other EU countries from having to deal with tourists disturbing public order upon their return.

The case will now go back to the European court for final resolution.

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